Citation Nr: 1028443
Decision Date: 07/29/10 Archive Date: 08/10/10
DOCKET NO. 05-20 367 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether new and material evidence has been received to reopen a
claim for entitlement to service connection for hepatitis.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESSES AT HEARING ON APPEAL
Appellant, Mother and C.H., M.S.W.
ATTORNEY FOR THE BOARD
J. N. Moats, Counsel
INTRODUCTION
The Veteran had active duty service from April 1988 to August
1990.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 2004 rating decision by a Regional
Office (RO) of the Department of Veterans Affairs (VA). The
Board previously remanded this case in November 2005 so that the
Veteran could be afforded a Board hearing. A Board hearing at
the RO was held in June 2006. A motion to advance this case on
the docket was denied by the Board in February 2007. The Board
remanded this case for further development in March 2007.
Further, the Board also remanded the issue of entitlement to
service connection for acquired psychiatric disability. However,
a subsequent rating decision in May 2010 granted service
connection for schizoaffective disorder, bipolar type, with
anxiety disorder not otherwise specified (claimed as acquired
psychiatric disability). Thus, as this was a full grant of the
benefit sought on appeal, this issue is no longer in appellate
status.
FINDINGS OF FACT
1. An October 2002 rating decision denied entitlement to service
connection for hepatitis because new and material evidence had
not been received; the Veteran failed to file a notice of
disagreement to initiate an appeal from this decision.
2. Evidence that raises a reasonable possibility of
substantiating the claim of entitlement to service connection for
hepatitis has not been received since the October 2002 rating
decision.
CONCLUSIONS OF LAW
1. The October 2002 rating decision, which denied entitlement to
service connection for hepatitis, is final. 38 U.S.C.A.
§ 7105(c) (West 2002).
4. New and material evidence has not been received since the
October 2002 rating decision denying service connection for
hepatitis; and thus, the claim is not reopened. 38 U.S.C.A. §
5108 (West 2002); 38 C.F.R. § 3.156(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
Under the Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126;
see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a
duty to notify the claimant of any information and evidence
needed to substantiate and complete a claim, and of what part of
that evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a);
38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183,
187 (2002).
Duty to Notify
The record shows that in May 2004, March 2006 and May 2007 VCAA
letters, the appellant was informed of the information and
evidence necessary to warrant entitlement to the benefit sought
on appeal. The appellant was also advised of the types of
evidence VA would assist him in obtaining as well as his own
responsibilities with regard to identifying relevant evidence.
See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v.
Principi, 16 Vet.App. 370 (2002).
The United States Court of Appeals for Veterans Claims' decision
in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part,
that a VCAA notice as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency of
original jurisdiction decision on a claim for VA benefits. In
this case, the RO provided VCAA notice to the Veteran in May
2004, which was prior to the August 2004 rating decision.
Accordingly, the requirements the Court set out in Pelegrini have
been satisfied. The Board recognizes that subsequent VCAA
notices were provided after the initial decision. However, the
deficiency in the timing of these notices was remedied by
readjudication of the issue on appeal in a May 2010 supplemental
statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006).
Further, the notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service and
the disability; 4) degree of disability; and 5) effective date of
the disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006).
In the present appeal, the appellant was provided with notice of
what type of information and evidence was needed to substantiate
the claim for service connection. Further, the March 2006 and
May 2007 letters gave notice of the types of evidence necessary
to establish a disability rating and effective date for the
disability on appeal.
In Kent v. Nicholson, 20 Vet.App. 1 (2006), the United States
Court of Appeals for Veterans Claims (the Court) addressed
directives consistent with VCAA with regard to new and material
evidence. The Court stated that in order to successfully reopen
a previously and finally disallowed claim, the law requires the
presentation of a special type of evidence-evidence that is both
new and material. The terms "new" and "material" have
specific, technical meanings that are not commonly known to VA
claimants. Because these requirements define particular types of
evidence, when providing the notice required by the VCAA it is
necessary, in most cases, for VA to inform claimants seeking to
reopen a previously and finally disallowed claim of the unique
character of evidence that must be presented. This notice
obligation does not modify the requirement that VA must provide a
claimant notice of what is required to substantiate each element
of a service-connection claim. See Dingess/Hartman v. Nicholson,
19 Vet.App. 473 (2006).
In other words, VA must notify a claimant of the evidence and
information that is necessary to reopen the claim and VA must
notify the claimant of the evidence and information that is
necessary to establish his entitlement to the underlying claim
for the benefit sought by the claimant. In addition, VA's
obligation to provide a claimant with notice of what constitutes
new and material evidence to reopen a service-connection claim
may be affected by the evidence that was of record at the time
that the prior claim was finally denied. In order to satisfy the
legislative intent underlying the VCAA notice requirement to
provide claimants with a meaningful opportunity to participate in
the adjudication of their claims, the VCAA requires, in the
context of a claim to reopen, the Secretary to look at the bases
for the denial in the prior decision and to respond with a notice
letter that describes what evidence would be necessary to
substantiate that element or elements required to establish
service connection that were found insufficient in the previous
denial. Therefore, the question of what constitutes material
evidence to reopen a claim for service connection depends on the
basis on which the prior claim was denied.
The May 2004 and May 2007 VCAA letters informed the Veteran of
what information and evidence was needed to substantiate a claim
for service connection. Further, both VCAA notices informed the
Veteran of what constitutes new and material evidence. Moreover,
the letters informed the Veteran that the evidence must pertain
to the reasons for the previous denial. The notice specifically
requested evidence that related to this fact. Thus, the
requirements set forth in Kent have been satisfied.
In sum, the Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of his
claims, and is not prejudiced by any technical notice deficiency
along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004). In any event, the Veteran has not demonstrated any
prejudice with regard to the content of the notice. See Shinseki
v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law
imposing a presumption of prejudice on any notice deficiency, and
clarifying that the burden of showing that an error is harmful,
or prejudicial, normally falls upon the party attacking the
agency's determination.) See also Mayfield v. Nicholson, 444
F.3d 1328, 1333-34 (Fed. Cir. 2006).
Duty to Assist
Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the law
and regulations. The record in this case includes service
treatment and personnel records, VA treatment records, private
treatment records and Social Security Administration (SSA)
records. The Board previously remanded this case and directed
the RO to provide VCAA notice and to obtain SSA records,
personnel records and private records. The record shows that the
RO has substantially complied with the March 2007 remand. See
Stegall v. West, 11 Vet.App. 268 (1998); Dyment v. West, 13
Vet.App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008).
The Board finds that the record as it stands includes adequate
competent evidence to allow the Board to decide the case and no
further action is necessary. See generally 38 C.F.R. §
3.159(c)(4). No additional pertinent evidence has been
identified by the claimant.
Further, where there is no showing of a current disability or a
link between any current disability and active service, a VA
medical examination is not necessary. 38 U.S.C.A. § 5103A(d); 38
C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet.App.
79 (2006). Further, the statutory duty to assist the Veteran
does not arise if the Veteran has not presented new and material
evidence to reopen his claim. Anderson v. Brown, 9 Vet.App. 542,
546 (1996).
For all the foregoing reasons, the Board concludes that VA's
duties to the claimant have been fulfilled with respect to the
issue on appeal.
Analysis
The present appeal involves the issue of whether new and material
evidence has been received to reopen a claim for entitlement to
service connection for hepatitis. Initially, service connection
for hepatitis was denied by a September 1993 rating decision
because although the Veteran was treated for hepatitis in
service, the condition was fully resolved in May 1990 and there
were no residuals shown on an August 1990 discharge examination.
Subsequently, the claim was again denied in May 1996 and April
1997 rating decisions. Most recently, the claim was again denied
in an October 2002 rating decision because new and material
evidence had not been submitted. However, the Veteran failed to
file a notice of disagreement. Under the circumstances, the
October 2002 rating decision became final. 38 U.S.C.A.
§ 7105(c).
Applicable law provides that a claim which is the subject of a
prior final decision may nevertheless be reopened if new and
material evidence is presented or secured. 38 U.S.C.A. § 5108.
New and material evidence is defined by regulation. See 38
C.F.R. § 3.156. New evidence means evidence not previously
submitted. Material evidence means existing evidence that by
itself or when considered with previous evidence relates to an
unestablished fact necessary to substantiate the claims. New and
material evidence can be neither cumulative nor redundant of the
evidence of record at the time of last final decision, and must
raise a reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
For the purpose of establishing whether new and material evidence
has been submitted, the credibility of the evidence, although not
its weight, is to be presumed. Justus v. Principi, 3 Vet.App.
510, 513 (1992). The Board must consider the question of whether
new and material evidence has been received because it goes to
the Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d
1366 (Fed. Cir. 2001).
The pertinent evidence of record prior to the October 2002 rating
decision consisted of service treatment records, lay statements
from the Veteran, a July 1992 private emergency room report,
private treatment records primarily pertaining to psychiatric
treatment from Clifford Beal, M.D., an April 1996 VA examination
and VA treatment records from May 1997 to October 2002. Service
treatment records showed that in March 1990, the Veteran was
hospitalized for 17 days due to infectious hepatitis. An April
1990 record showed that the Veteran reported for follow up after
a 21 day convalescent leave. The assessment was hepatitis, but a
contemporaneous hepatitis screen was negative. A May 1990
treatment record gave an assessment of resolved hepatitis, but
would recheck liver functions tests (LFTs). A subsequent
treatment record showed that LFTs were normal and hepatitis had
resolved. An August 1990 discharge examination was silent with
respect to any residuals of hepatitis. In a contemporaneous
medical history, the Veteran reported a history of jaundice or
hepatitis, and the examiner noted that the Veteran had an episode
of hepatitis in March 1990, which has resolved by May 1990.
The April 1996 VA examination showed that the Veteran was
diagnosed in service with either hepatitis A or B and that he was
concerned about his prior history of hepatitis. The diagnosis
was jaundice with history of hepatitis questionable A or B as
medical records were not available for review. However, the
Veteran did not experience recurrent jaundice and all tests were
normal. It was noted that LFTs would be obtained. In an April
1997 statement, the Veteran reported stomach problems, joint pain
and feeling tired, which he attributed to the hepatitis he had in
service. The emergency room report and private treatment records
from Dr. Beal showed a history of hepatitis, but did not note any
current residuals. Significantly, a June 2001 VA treatment
record showed a past history of acute hepatitis in 1992
(questionable), but his hepatitis A, B and C panel were all
negative in March 2000. The VA treatment records were also
silent with respect to any current residuals. Accordingly, the
October 2002 rating decision denied service connection for
hepatitis, as the evidence showed that the hepatitis the Veteran
had in service had resolved.
Since the October 2002 rating decision, additional evidence has
become part of the record, including: additional private
treatment records from Dr. Beal's office, additional VA treatment
records, SSA records, lay statements from the Veteran's mother,
service personnel records and Board hearing testimony. The
evidence of record also included numerous psychological treatment
records as well as lay statements primarily pertaining to the
Veteran's psychiatric disability. Initially, the Board observes
that the Veteran's service personnel records are completely
silent with respect to the contracted hepatitis in service.
Thus, these records are not related to the claimed in-service
disease and, in turn, are not relevant to this issue. See
38 C.F.R. § 3.156(c).
Private psychiatric treatment records again noted a history of
hepatitis B in the Navy and indicated that it was inactive.
However, although unclear it appears that a March 1994 record,
which was subsequently signed and dated March 2004 appears to
indicate questionable reoccurrence of military contracted
hepatitis. Nevertheless, importantly, an April 2002 private lab
report associated with the Veteran's SSA records showed that the
Veteran's hepatic function panel were all within range. A follow
up private treatment record indicated that the hepatitis function
was normal. Further, VA treatment records were silent with
respect to any current findings of hepatitis related to service.
Significantly, a December 2005 VA treatment record showed that
the Veteran reported that he was informed by his psychiatrist
that his fatigue may be related to recurrence of hepatitis.
However, the assessment showed a history of hepatitis, but no
current evidence of viral hepatitis; will repeat serological
tests. Follow up treatment records are silent with respect to
any findings of recurrent hepatitis. Nevertheless, importantly,
while these records documented a history of hepatitis, these
additional medical records do not show that the Veteran currently
has hepatitis that manifested in service. Although a private
psychological report indicated questionable reoccurrence of
hepatitis, there are no contemporaneous lab reports confirming a
diagnosis of hepatitis and subsequent lab tests have all been
normal. In sum, the medical evidence still showed that the
hepatitis the Veteran contracted in service resolved in service
with no residuals. Accordingly, while this evidence is new, it
cannot be considered material because it does not raise a
reasonable possibility of substantiating the Veteran's claim.
The Veteran's mother has also submitted statements indicating
that the Veteran is completely disabled and that his medical
doctors had informed them that once you have hepatitis, you will
always have hepatitis because it can lay dormant. However, while
these statements are new, again, they cannot be considered
material, because they do not constitute credible medical
evidence of a current disability related to service. She did not
provide any evidence of lay observable symptoms showing that the
Veteran's hepatitis had in fact reoccurred.
Further, any assertions made by the Veteran concerning continuing
symptoms since service cannot be considered new and material
because they are redundant of statements already of record at the
time of the October 2002 rating decision. Moreover, while new,
the Board hearing testimony cannot be considered material because
the Veteran simply referred the Board to his VA treatment records
indicating that they were sufficient to substantiate his claim.
However, as discussed above, the VA treatment records do not show
any residuals of hepatitis.
For the reasons outlined above, the Board concludes that the
Veteran has not presented new and material evidence. 38 C.F.R.
§ 3.156(a). Accordingly, the claim of entitlement to service
connection for hepatitis is not reopened. 38 U.S.C.A. § 5108.
ORDER
New and material evidence to reopen the claim for entitlement to
service connection for hepatitis has not been received. The
appeal is denied.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs